Com. v. Shaw, L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LARRY F. SHAW :
:
Appellant : No. 267 WDA 2021
Appeal from the Judgment of Sentence Entered July 6, 2020
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000287-2020
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED: DECEMBER 29, 2021
Appellant, Larry F. Shaw, appeals from the judgment of sentence
entered in the Fayette County Court of Common Pleas, following his jury trial
convictions for receiving stolen property, persons not to possess firearms,
flight to avoid apprehension, firearms not to be carried without a license, false
reports to law enforcement, resisting arrest, and disorderly conduct.1 We
affirm.
The trial court opinion set forth the relevant facts of this case as follows:
On December 2, 2019, the Pennsylvania State Police
received information that [Appellant] was seen in the area
of Evans Avenue and Connellsville Street in the City of
Uniontown. [Appellant] had an outstanding arrest warrant
on that date. Three Troopers went to the general area in an
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3925, 6105, 5126, 6106, 4906, 5104, and 5503.
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attempt to locate him. Trooper Wright had contacted an
individual who he believed was … Appellant. However, when
asked his identity, … Appellant gave the name John Smith.
After Trooper DeGusipe arrived on the scene, he sent out a
search for the name John Smith, the search came back with
no record found. Trooper Carcella was the last trooper to
arrive at the location where … Appellant had been stopped[.]
Trooper Carcella had viewed … Appellant’s driver’s license
photo and positively identified … Appellant. [A]ppellant
immediately fled on foot with the Troopers in pursuit. After
being pursued through several yards, Trooper [DeGusipe]
observed … Appellant toss an item that he thought might be
a gun. After … Appellant was apprehended, Trooper Carcella
conducted a search and located a tan and silver pistol in the
area of … Appellant. Prior to the pursuit, it had been
drizzling rain. When the firearm was located, it was
observed to be dry. The firearm was subsequently collected
as evidence and found to be loaded. After verbally receiving
his Miranda[2] warning, … Appellant admitted that the gun
was his. The Greensburg Lab determined the gun was
operational. Using the serial number on the firearm, the
registered owner was located. At trial, the registered owner
testified that the gun had been stolen during a burglary of
his residence in October 2019. The parties stipulated that
… Appellant is a person not to possess a firearm.
… Appellant testified that he never told the Trooper that the
weapon was his and he denied possessing the weapon.
Testimony was presented that … Appellant had a prior
[crimen] falsi charge of Robbery.
(Trial Court Opinion, filed April 7, 2021, at unnumbered p. 2) (internal record
citations omitted).
Procedurally, on July 6, 2020, a jury convicted Appellant of the above-
mentioned crimes. The court sentenced Appellant that day to 6 to 12 years’
imprisonment for the persons not to possess conviction and imposed no
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2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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further penalty for the remaining crimes.
On July 13, 2020, Appellant filed a pro se request for counsel to
withdraw, alleging trial counsel’s ineffectiveness. Because Appellant still had
counsel of record, the court forwarded the motion to counsel consistent with
Pa.R.Crim.P. 576(A)(4).3 Appellant also submitted pro se letters to the Clerk
of Courts on August 3, 2020, and February 1, 2021. In the August 3rd letter,
Appellant expressly stated: “I want to file an appeal for the gun case they
gave me 6-12 years for.” (Pro Se Letter, 8/3/20, at 1). Appellant indicated
that he had no access to computers because he was in quarantine for fourteen
(14) days and asked how he could appeal. Appellant acknowledged that the
appeal period was expiring soon.
The Clerk of Courts forwarded the letter to counsel per Rule 576(A)(4).
The Clerk of Courts also responded on August 7, 2020, explaining to Appellant
that he had to prepare a notice of appeal and the filing fees associated with
doing so, unless Appellant applied for and was granted in forma pauperis
(“IFP”) status. The letter further told Appellant that all pro se filings would be
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3 See Pa.R.Crim.P. 576(A)(4) (stating: “In any case in which a defendant is
represented by an attorney, if the defendant submits for filing a written
motion, notice, or document that has not been signed by the defendant’s
attorney, the clerk of courts shall accept it for filing, time stamp it with the
date of receipt and make a docket entry reflecting the date of receipt, and
place the document in the criminal case file. A copy of the time stamped
document shall be forwarded to the defendant’s attorney and the attorney for
the Commonwealth within 10 days of receipt”).
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forwarded to counsel in accordance with Rule 576(A)(4), but that if Appellant
filed a notice of appeal, Rule 576(A)(4) would not apply, and the court would
docket the pro se notice of appeal.4
In the February 1st pro se letter, Appellant asked when the deadline was
for filing a notice of appeal or to file a collateral relief petition. The Clerk of
Courts responded the next day, stating it could not provide legal advice and
directing Appellant to consult with his attorney or conduct research in the law
library.
On February 25, 2021, counsel filed a “Notice of Appeal to the Superior
Court, Nunc Pro Tunc” and IFP petition on Appellant’s behalf. On March 8,
2021, the court ordered Appellant to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b). Appellant filed a counseled
Rule 1925(b) statement on March 24, 2021.
On March 25, 2021, this Court issued a rule to show cause why the
appeal should not be quashed as untimely. Counsel filed a response on May
4, 2021, stating:
Following [Appellant’s] sentencing in the criminal trial
below, we were unable to reach him due to COVID-19
restrictions and thus unable to obtain his signature in order
to properly proceed on an appeal. Once I was able to reach
[Appellant], I decided to sign off on the appeal documents
without his signature because he had been sent to the State
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4 While hybrid representation is generally prohibited, the right to appeal is
protected by our Constitution, therefore, courts must docket a pro se notice
of appeal even if the appellant is represented by counsel. Commonwealth
v. H. Williams, 151 A.3d 621, 623 (Pa.Super. 2016).
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Correctional Institute in Fayette County. As soon as possible
thereafter, I filed the within appeal.
(Response to Rule to Show Cause, filed 5/4/21, at 1). On May 14, 2021, this
Court discharged the rule to show cause and referred the issue to the merits
panel.
Appellant raises two issues for our review:
Did the Commonwealth fail to present sufficient evidence to
prove beyond a reasonable doubt that Appellant actually or
constructively possessed a firearm?
Did the Commonwealth fail to present sufficient evidence to
prove beyond a reasonable doubt that Appellant received,
retained, or disposed of movable property of another?
(Appellant’s Brief at 7).
Preliminarily, we must address the timeliness of Appellant’s appeal. The
timeliness of an appeal is a jurisdictional requisite. Commonwealth v.
Patterson, 940 A.2d 493 (Pa.Super. 2007), appeal denied, 599 Pa. 691, 960
A.2d 838 (2008). A defendant has 30 days to file an appeal in this Court after
entry of the order from which the appeal is taken. Pa.R.A.P. 903(a). Time
limitations for taking appeals are strictly construed and cannot be extended
as a matter of grace. Commonwealth v. Valentine, 928 A.2d 346(Pa.Super. 2007). Extension of the filing period is permitted only in
extraordinary circumstances, such as fraud or a breakdown in the court’s
operation. Commonwealth v. Braykovich, 664 A.2d 133 (Pa.Super. 1995),
appeal denied, 544 Pa. 622, 675 A.2d 1242 (1996).
Nevertheless, “[f]ailure of an appellant to take any step other than the
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timely filing of a notice of appeal does not affect the validity of the appeal, but
it is subject to such action as the appellate court deems appropriate, which
may include, but is not limited to, remand of the matter to the lower court so
that the omitted procedural step may be taken.” Pa.R.A.P. 902. See also
Pa.R.A.P. 905(b) (requiring Clerk of Courts to “immediately transmit to the
prothonotary of the appellate court named in the notice of appeal a copy of
the notice of appeal”); Commonwealth v. C. Williams, 630 Pa. 169, 179,
106 A.3d 583, 588-89 (2014) (holding Clerk of Courts is “obligated to accept
and process notices of appeal upon receipt in accordance with the Rules of
Appellate Procedure, notwithstanding any perceived defects therein”).
Instantly, the court sentenced Appellant on July 6, 2020. On August 3,
2020, within the 30-day appeal period, Appellant submitted a pro se letter
expressly stating that he wanted to appeal his sentence of 6 to 12 years’
imprisonment in the “gun case.” Although Appellant’s pro se letter was not in
the proper form (see Pa.R.A.P. 904), the defects in form did not affect the
validity of the appeal. See Pa.R.A.P. 902. See also Commonwealth v.
Alaouie, 837 A.2d 1190, 1192 (Pa.Super. 2003) (holding prothonotary had
no authority to reject appellant’s timely but defective notice of appeal).
Additionally, the fact that Appellant was still represented by counsel when he
submitted the pro se appeal letter did not prohibit the Clerk of Courts from
docketing it. See H. Williams, supra. Under these circumstances, we
decline to quash the appeal and consider Appellant’s August 3, 2020 pro se
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letter expressing his intent to appeal a timely notice of appeal. Therefore, we
need not consider whether the reasons proffered by counsel for the delay in
filing the counseled notice of appeal constitute sufficient grounds for nunc pro
tunc relief.
Turning to the merits of this case, our standard and scope of review are
as follows:
When examining a challenge to the sufficiency of the
evidence:
The standard we apply…is whether viewing all the
evidence admitted at trial in the light most favorable
to the verdict winner, there is sufficient evidence to
enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the
above test, we may not weigh the evidence and
substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude
every possibility of innocence. Any doubts regarding
a defendant’s guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that
as a matter of law no probability of fact may be drawn
from the combined circumstances. The
Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received
must be considered. Finally, the trier of fact while
passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all,
part or none of the evidence.
This standard is equally applicable in cases where the
evidence is circumstantial, rather than direct, provided that
the combination of evidence links the accused to the crime
beyond a reasonable doubt.
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Commonwealth v. Orr, 38 A.3d 868, 872-73 (Pa.Super. 2011) (en banc),
appeal denied, 617 Pa. 637, 54 A.3d 348 (2012) (internal citations, quotation
marks, and emphasis omitted).
In his first issue, Appellant argues that the Commonwealth failed to
prove his possession of a firearm. Appellant asserts that Trooper Carcella
admitted that he did not see Appellant with a gun. Appellant highlights that
the Commonwealth did not introduce any evidence of Appellant’s DNA or
fingerprints on the gun. Appellant insists that Trooper Wright also admitted
that he did not observe Appellant with a firearm. Appellant emphasizes that
Trooper Wright testified that he did not lose sight of Appellant during the foot
pursuit. Appellant reasons, “[w]here an eyewitness observes an entire event
subject of a criminal investigation yet does not observe an essential act (here,
that Appellant supposedly threw a firearm), it logically follows that the act
never took place. Therefore, logic dictates that Appellant never possessed the
firearm subject of this investigation.” (Appellant’s Brief at 15). Appellant
further points out that Trooper DeGusipe testified that he observed Appellant
reach into his waistband and discard an object that the trooper believed was
a gun. In light of Trooper Wright’s testimony that he never lost sight of
Appellant, however, Appellant posits that Trooper Wright’s testimony should
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have carried greater weight than Trooper DeGusipe’s testimony. 5 Appellant
concludes the evidence was insufficient to sustain his conviction for persons
not to possess a firearm, and this Court must reverse his conviction and vacate
his judgment of sentence. We disagree.
The Uniform Firearms Act provides, in relevant part, as follows:
§ 6105. Persons not to possess, use, manufacture,
control, sell or transfer firearms
(a) Offense defined.—
(1) A person who has been convicted of an offense
enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence or
whose conduct meets the criteria in subsection (c) shall not
possess, use, control, sell, transfer or manufacture or obtain
a license to possess, use, control, sell, transfer or
manufacture a firearm in this Commonwealth.
18 Pa.C.S.A. § 6105(a)(1).
Instantly, the trial court evaluated Appellant’s first issue as follows:
One Trooper testified that he observed … Appellant toss
what he thought was a gun. Another Trooper located the
firearm in the area where the object was thrown. While it
was drizzling rain that evening, the Trooper testified that
when he first observed the firearm, it was dry. The gun was
later determined to be operational and loaded with nine
bullets. While the evidence is circumstantial, as the trier of
fact, the jury can believe all, part or none of the testimony
of a witness. In this case, the jury believed the Trooper and
determined that … Appellant possessed the weapon. The
parties stipulated to the fact that … Appellant was a person
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5 To the extent that Appellant’s issue might implicate the weight of the
evidence, that challenge is waived where Appellant did not preserve that issue.
See Pa.R.Crim.P. 607(A) (requiring appellant to raise challenge to weight of
evidence in motion for new trial).
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not to possess. …
(Trial Court Opinion at unnumbered pp. 3-4) (internal record citations
omitted). Additionally, the jury was free to accept the testimony that
Appellant admitted the gun was his (see N.T. Trial, 7/6/20, at 40), and to
reject Appellant’s testimony denying possession of the gun (see id. at 49).
See Orr, supra. Viewed in the light most favorable to the Commonwealth as
verdict-winner, the evidence was sufficient to sustain Appellant’s conviction
under Section 6105. See id. See also 18 Pa.C.S.A. § 6105. Therefore,
Appellant’s first issue merits no relief.
In his second issue, Appellant argues the Commonwealth presented
insufficient evidence of his “guilty knowledge” to sustain his conviction for
receiving stolen property. Appellant asserts that possession of stolen property
is not by itself sufficient to establish the requisite guilty knowledge. Appellant
contends that the Commonwealth presented only the testimony of Jerome
Gianopolus, the registered owner of the allegedly stolen firearm. Appellant
insists, however, that the Commonwealth failed to present any evidence,
whether direct or circumstantial, that Appellant knew or should have known
that the firearm was stolen. Appellant concludes the evidence was insufficient
to sustain his conviction for receiving stolen property, and this Court must
reverse his conviction and vacate the judgment of sentence. We disagree.
The Crimes Code defines the offense of receiving stolen property as
follows:
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§ 3925. Receiving stolen property
(a) Offense defined.—A person is guilty of theft if he
intentionally receives, retains, or disposes of movable
property of another knowing that it has been stolen, or
believing that it has probably been stolen, unless the
property is received, retained, or disposed with the intent to
restore it to the owner.
18 Pa.C.S.A. § 3925(a). “[T]o establish the mens rea element of the crime of
receiving stolen property, the Commonwealth must prove that the accused
possessed property with “guilty knowledge,” i.e., knowing that it has been
stolen, or believing that it has probably been stolen.” Commonwealth v.
Newton, 994 A.2d 1127, 1132-33 (Pa.Super. 2010). “A person ‘knows’ that
goods are stolen if he is ‘aware’ of that fact.” Id. at 1132. Regarding the
latter part of the test, “it is clear that [the statute] is designed to criminalize
situations where the defendant does not know for certain that the goods are
stolen, but nevertheless has: (1) considered the possibility that the goods are
stolen and (2) concluded that the answer is at the very least, ‘probably.’” Id.The Commonwealth may establish a defendant’s “guilty knowledge” by
wholly circumstantial evidence. Id. “Often, intent cannot be proven directly
but must be inferred from examination of the facts and circumstances of the
case.” Id. In evaluating “guilty knowledge,” this Court has explained:
A permissible inference of guilty knowledge may be drawn
from the unexplained possession of recently stolen goods
without infringing upon an accused’s right of due process or
his right against self-incrimination, as well as other
circumstances, such as the accused’s conduct at the
time of arrest. Nonetheless, the mere possession of stolen
property is insufficient to prove guilty knowledge, and the
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Commonwealth must introduce other evidence, which can
be either circumstantial or direct, that demonstrates that
the defendant knew or had reason to believe that the
property was stolen. This additional evidence can include
the nature of the goods, the quantity of the goods involved,
the lapse of time between possession and theft, and the
ease with which the goods can be assimilated into trade
channels. Further, whether the property has alterations
indicative of being stolen can be used to establish guilty
knowledge. Finally, even if the accused offers an
explanation for his possession of stolen property, the trier
of fact may consider the possession as unexplained if it
deems the explanation unsatisfactory.
Commonwealth v. Parker, 847 A.2d 745, 751 (Pa.Super. 2004) (emphasis
added) (quoting Commonwealth v. Foreman, 797 A.2d 1005, 1012-13
(Pa.Super. 2002)) (internal citations omitted). “Any or all of the above
circumstances, and others not enumerated, taken sometimes alone and
sometimes in relation to each other, may give rise to the final necessary
inference that the [defendant] knew that the property possessed was stolen
property.” Commonwealth v. Campbell, 334 A.2d 735, 738 (Pa.Super.
1975). See, e.g., Commonwealth v. Gomez, 224 A.3d 1095, 1100
(Pa.Super. 2019), appeal denied, ___ Pa. ___, 236 A.3d 1053 (2020) (holding
Commonwealth presented sufficient evidence of appellant’s guilty knowledge
for receiving stolen property conviction where appellant refused to comply
with officers’ repeated requests for cooperation during routine traffic stop,
based on appellant’s status as previously convicted felon he could not lawfully
purchase or possess firearm, and expert testimony established that it is very
common for drug dealers to obtain stolen firearms illicitly; these
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circumstances are sufficient to enable fact-finder to infer that defendant
believed firearms were probably stolen).
Significantly, when the Commonwealth “establishes the recency of the
theft, we have upheld convictions for receiving stolen property.”
Commonwealth v. Robinson, 128 A.3d 261, 268 (Pa.Super. 2015) (en
banc). “Whether possession is recent, and how recent it is, are normally
questions of fact for the trier of fact.” Commonwealth v. Hogan, 468 A.2d
493, 497-98 (Pa.Super. 1983) (en banc) (explaining that whether appellant’s
possession of automobile 28 days after automobile was stolen constitutes
“recent” for purposes of guilty knowledge inference is question for fact-finder;
“We cannot say as a matter of law a period of four weeks was so great as to
render impermissible the inference of guilty knowledge…”). Compare
Commonwealth v. Stover, 436 A.2d 232, 233-34 (Pa.Super. 1981) (holding
possession 37 days after theft of automobile was not recent, and no other
evidence linked defendant to theft). “[W]hether possession of goods is
unexplained is also a question of fact.” Hogan, supra at 496.
Instantly, the Commonwealth presented testimony from Jerome
Gianopolus. Mr. Gianopolus testified that his gun was stolen in October 2019,
and that he reported it as stolen on the night his home was burglarized. (N.T.
Trial at 16-17). Mr. Gianopolus also testified that he lives in Markleysburg,
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Pennsylvania.6 Additionally, the Commonwealth presented evidence that
Appellant initially identified himself as John Smith when the officers confronted
him, and when police realized who Appellant was, Appellant fled the scene.
(Id. at 21-22). Appellant testified in his own defense, but he did not offer any
explanation for possession of the stolen firearm because Appellant denied
possessing a firearm on the night in question. (Id. at 49). Appellant also
denied that he had ever admitted to police on the night of his arrest that the
gun was his. (Id.)
Here, the jury was free to consider the recency of Appellant’s possession
of the firearm (less than two months after it was stolen) and Appellant’s
unexplained possession of the firearm (because Appellant denied ever
possessing it at all) as circumstantial evidence of Appellant’s guilty knowledge.
See Hogan, supra. Even if Appellant’s possession of the stolen firearm does
not qualify as “recent” (see Stover, supra), the Commonwealth presented
additional circumstantial evidence to establish Appellant’s guilty knowledge,
where Appellant gave a false name to police and then fled. Although Appellant
testified that he ran because of the active warrant for his arrest (see N.T. Trial
at 49), “[t]he fact-finder need not choose between Appellant’s several crimes
to determine whether one or more would cause Appellant’s obstinate behavior.
Rather, based on his conduct, the fact-finder was free to infer that Appellant
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6 Markleysburg, Pennsylvania is approximately 18 miles away from
Uniontown, Pennsylvania, where Appellant was apprehended.
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knew or believed that the firearms were probably stolen.” Gomez, supra at
1100.
Under these circumstances, the Commonwealth presented sufficient
circumstantial evidence of Appellant’s guilty knowledge. See id.; Campbell,
supra. Viewed in the light most favorable to the Commonwealth as verdict-
winner, the evidence was sufficient to sustain Appellant’s conviction for
receiving stolen property. See Orr, supra. See also 18 Pa.C.S.A. § 3925.
Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2021
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